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Thursday, February 13, 2014

Funding Legal Scholarship: Moving from School & Salary Funding to Field & Grant Funding

The first post in this series on funding legal scholarship discussed the basic law school model: individual law schools fund scholarship.  And to a large extent, law schools fund only their own faculty's scholarship.  Yes, law schools do fund law reviews, which generally publish the work of outside scholars.  But schools pay their own faculty's salaries, provide special financial incentives for research, and pay for research assistants and research travel.  A professor's research is largely funded by her own institution.

A strength of this model is that it encourages schools to compete against each other based on academic reputation.  Although the most prominent ranking system (USNWR) is not directly correlated with research productivity, school reputation is a strong factor, and all of the top-ranked schools enjoy strong scholarly profiles.  Schools regularly compete against each other in the entry-level and lateral markets to nab the best scholars for their faculties.  Critics of this system have to contend with the success of the elite schools, which place their graduates extremely well and are largely left out of the "scamlaw" discussions.  In a world that rewards the school's graduates for the reputation of its faculty, it make sense for individual schools to use some portion of their funds to get the best scholars.

However, the school-funded system also has significant weaknesses.  Paying for scholarly productivity through salary is a messy mechanism.  When profs can't get fired for a lack of scholarly productivity post-tenure, scholarship essentially becomes optional.  And many (most?) schools do not have the significant disparities between faculty salaries that could tangibly reward significant distinctions in production.  Moreover, if salaries cannot go down, then merit raises get locked in, and a professor is paid for past productivity long into the future.

Perhaps more problematically, school funding encourages an insularity to legal scholarship.  The professor need really only please the dean in order to get the salary and other research funding that the school makes available.  Even assuming that the dean looks to outside markers such as placements and citation counts, a professor need not engage with her colleagues at the beginning of a project.  The stereotypical law scholar sits amid books and Westlaw, working in solitary seclusion on a piece.  Workshops, the star footnote, SSRN, and even blogs all encourage a scholarly conversation.  But collaboration or peer input is not built as concretely into the beginning part of the process as it is in other disciplines.

Morever, the inward focus can make professors look selfish when they are working or getting paid for scholarship.  Since individual law profs control much of their own scholarly agenda, scholarship takes on an individualistic quality.  Add in the fact that some kinds of scholarship (under the sales model) provide payments directly to the professor, and you can get the notion that a law school is just a bunch of independent contractors working under one roof.  The professoriate has insulated itself -- perhaps to better protect against outside influences, but at a significant cost.  That may be part of the reason why you get articles like this and Chief Justice comments like that.

Just to be clear, I am not talking here about making legal scholarship more relevant to the bar.  I am talking about making law professors more accountable for writing good scholarship by changing the funding mechanisms for producing such scholarship.  Right now, we often simply give profs money and hope they produce something.  But if we changed our models, we might get better scholarship (using whatever metric you like) for less money.

My overall suggestion is to shift away from an individual-school, salary-based funding model to a field- and grant-funding model.  The grant-funding model uses third parties (of some kind) to judge the value of a particular project, and these parties then offer funding for that project on an incremental basis.  Such a system has the following advantages over the school-funded, salary-based system:  

  • It takes at least some of the funding responsibility off of individual schools, thereby making that school's students shoulder less of the expense.
  • It provides for more accountability for scholarly output over time.
  • It provides some form of peer review and peer connection for projects at the beginning stages, rather than simply at the end.
  • It can be structured to encourage collaboration and interdisciplinarity.

The identity of these third-party funders is critical.  I'm not talking primarily about NSF or NIH -- although increasing those grants would be helpful.  I'm primarily talking about the field of law -- law schools, AALS, the ABA, and other institutional players -- creating mechanisms that specifically fund legal scholsrship.  If the field believes that legal scholarship is important, than the field should create mechanisms for funding legal scholarship beyond the individual school model.  

Tomorrow I'll address particular ideas for funding reforms.  In the meantime, I'd be interested in your thoughts on the overall approach.

Posted by Matt Bodie on February 13, 2014 at 03:10 PM in Life of Law Schools | Permalink

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It seems to me that for lots of scholarship all one really needs is WESTLAW (which I also use for teaching). So I'm not sure how legal scholarship needs to be funded at all.

Posted by: Michael Lewyn | Feb 13, 2014 8:57:44 PM

I gather the core of the proposal is to move from a steady salary model to a eat-what-you-kill model: You don't get paid -- or at least you don't get paid very much -- unless you write an article that someone else has valued already. Putting aside the issue of who exactly determines the value of a project, it's kind of a freelancing model: You only get paid when you sell a story, which gives you an incentive to write a lot to get paid a lot. Am I understanding the idea correctly?

Posted by: Orin Kerr | Feb 13, 2014 11:13:39 PM

But a model such as you're proposing wouldn't necessarily bring down the cost of legal education at all. Although we have to wait until tomorrow to find out the specifics of your idea, I'm assuming you're going to propose that individual law schools collected debt-financed tuition dollars from students, pay it into some central scholarship-funding organization, and then the central organization awards money based on grant proposals submitted by faculty.

The idea of this, without considering it extensively, seems somewhat problematic to me. What if a law school decided to cut costs to, say, $20,000/year, while other schools cost $50,000/year. If faculty at the $20,000/year school were to get grants from a centrally-funded organization, wouldn't that imply that students at more expensive schools are paying for the scholarship of faculty at lower-priced institutions?

Posted by: yes, but... | Feb 14, 2014 12:01:05 AM

Orin and yes, but . . . get the gist of what I'm getting at. But I'm not advocating a wholesale conversion to a centralized grant-funding approach -- just ways to mitigate the effects of the current system. And yes, but . . ., I'd be worried that the elite scholars might take all the funding in a centralized model, so maybe that runs counter to your fears (unless you're talking about lower-ranked yet expensive schools).

Posted by: Matt Bodie | Feb 14, 2014 10:36:37 AM

Matt,

This is an interesting way to think about unbundling aspects of the law school-faculty relationship. Apart from some of the practical complexities, I wonder why law schools would be interested in this.

You make a good point about professors-as-independent contractors (I'm less convinced that the insularity you describe is an attribute of the funding model). However, schools evidently behave as if high-status scholarship by individual faculty counts as a win "for the team". Wouldn't schools continue to behave this way?

Let's take a superstar professor who also has a unique ability to attract outside grants. I assume she'd have this same ability if the grants were ABA- or AALS-funded. I'm not sure why a school would not find such a person attractive, and be inclined to entice that scholar with higher rates of compensation. The incentives would appear to be very similar to the current system.

This point is related to a broader, and perhaps hopelessly complicated aspect of this debate: What does "paying" for scholarship mean? It can mean: summer stipends, bonuses, reduced teaching loads, merit raises and promotions. I think only some of the categories might be captured by your proposal. More complicatedly, however, are the other routes law schools take to paying for scholarship. By selecting people with scholarly traits, and compensating them significantly in excess of the "market value" of teaching services alone, law schools end up picking different types of (expensive) people, and more of them (because they provide fewer teaching services than other people they might hire instead).

We'll find out tomorrow if Orin's interpretation is right - profs would get a low base salary, with the difference made up through external funding. But if he is right, he won't be right for long, as schools compete to attract faculties they feel will enhance their brand and status. Possibly, your suggestion is an intriguing response to the problem of unproductive law professors, but I'm not sure it's a solution to the problematic nature of bundling teaching and scholarship. That is, if one feels - as I suspect commenter "yes, but…" does - that law students shouldn't' be paying for law scholarship, this idea may not do much. I don't agree with that view myself, but I do think law schools need to provide better justifications for current practices. I can see your suggestion as one route into that discussion.

Adam

Posted by: Adam | Feb 14, 2014 12:38:04 PM

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